In the circumstances described below, does the preparation and issuance by an attorney
for an organization of public employees, of a legal opinion in connection with an
employment dispute constitute a violation of the Texas Code of Professional
Responsibility?

An attorney in the private practice of law represents an organization of employees who
are peace officers employed by a political subdivision of the State of Texas. In
connection with a dispute between the employee organization and the director of the law
enforcement agency that employs the members of the organization, the attorney is retained
by the organization to prepare a statement that is designated as a legal opinion and
signed by the lawyer as "attorney at law." The opinion recommends a course of
conduct contrary to certain orders issued by the director of the law enforcement agency to
the peace officer members of the employee organization. The opinion is prepared by the
attorney to be circulated to the employee members of the employee organization and is in
fact circulated after the opinion has been approved by the employee organization. The
person requesting the opinion of the Professional Ethics Committee has alleged that the
legal opinion recommends a course of conduct by the employees that is contrary to the
legal obligations of the employees.

Discussion

Since the Professional Ethics Committee does not issue opinions on questions of law,
the committee expresses no opinion as to whether the legal opinion in question is in
accord with, or contrary to, applicable law.

If the legal opinion is a correct statement of law and the legal obligations of the
members of the employee organization, issuance of the opinion does not involve violation
of any Disciplinary Rule (DR) of the Texas Code of Professional Responsibility.

If the legal opinion in question recommends a course of conduct that is contrary to
law, the mere fact of legal error would not itself be grounds for finding the attorney to
be in violation of the Texas Code of Professional Responsibility. Whether a violation
would be involved would in many cases turn on the mental state of the attorney when he
prepared the opinion recommending illegal conduct. If the attorney, with knowledge of the
correct legal standard, deliberately issued an opinion recommending conduct that the
attorney knew was contrary to law, the attorney would violate DR 1-102(A)(4) by engaging "in conduct involving
dishonesty, fraud, deceit, or misrepresentation." Moreover, since the actions of
peace officers are involved, the attorney might also be in violation of DR 1-102(A)(5)
through engaging "in conduct that is prejudicial to the administration of
justice." In addition, the attorney would be in violation of DR 7-102(A)(5) and (7) by knowingly making a false
statement of law or fact and by counseling or assisting his client in conduct that the
lawyer knows to be illegal.

Even if the lawyer could not be shown to have deliberately issued an erroneous opinion,
the lawyer would be in violation of DR 6-101(A) if the
erroneous opinion was issued because the lawyer handled a legal matter that he knew or
should have known was beyond his competence or handled a legal matter without preparation
adequate in the circumstances.

However, if the lawyer acted competently in preparing his opinion and issued it in the
belief that the opinion was correct, the fact that the opinion was actually erroneous
would not cause the lawyer to be in violation of the Texas Code of Professional
Responsibility.

Conclusion

A lawyer for an organization of peace officers who issues an erroneous opinion as to
the obligations of the peace officers would be in violation of the Texas Code of
Professional Responsibility if the opinion were issued by the attorney with knowledge that
the opinion recommended illegal conduct or as a result of the failure of the attorney to
act competently in the circumstances. Issuance of an opinion that is erroneous because of
an honest mistake and not because of the attorney's failure to act with due care would not
involve any violation of the Texas Code of Professional Responsibility. Issuance of a
correct opinion in such circumstances would also not involve violation of the Texas Code
of Professional Responsibility. (9-0.)